Carroll v. Fitzsimmons

371 P.2d 441 (1962)

George A. CARROLL, minor, by his Mother and Next Friend, Violet J. Carroll, Plaintiff in Error, v. W. B. FITZSIMMONS, R. B. Vlaanderen, Jesse Powers, Don Alsup, Alfred Krogh, Armin McFaddin, Bertha Heid, Louise Tennant, and School District No. 14, in the County of Adams, State of Colorado, Defendants in Error.

No. 19953.

Supreme Court of Colorado. En Banc.

May 14, 1962.

George A. Hinshaw, A. Daniel Rooney, III, Aurora, for plaintiff in error.

Wormwood, O'Dell & Wolvington, Denver, Gaunt, Byrne & Dirrim, Brighton, for defendants in error, W. B. Fitzsimmons, Jesse Powers, Don Alsup, Alfred Krogh, Armin McFaddin, Bertha Heid, Louise Tennant, and Sch. Dist. No. 14, County of Adams, State of Colo.

McComb, Zarlengo & Mott, Valentine W. Logan, Denver, for defendant in error, R. B. Vlaanderen.

HALL, Justice.

The parties appear here in the same order as in the trial court. We refer to them as plaintiff and defendants.

Plaintiff in his complaint seeks damages for personal injuries arising out of the alleged negligence of defendants.

Defendants filed motions to dismiss the complaint for failure to state a claim upon which relief can be granted. Orders were entered granting these motions. No judgment of dismissal was entered.

The plaintiff is here by writ of error seeking reversal.

In Marzec v. Fremont County, 136 Colo. 250, 315 P.2d 987, this court said:

"* * * There is nothing in the record to indicate that the plaintiff was given an opportunity to amend his complaint as he had a right to do under *442 Rule 15, R.C.P.Colo.; nothing to indicate that the plaintiff elected to stand on his complaint; nothing to indicate that a judgment was ever entered or a motion for a new trial filed or dispensed with.

* * * * * * "There being no judgment before us to review, affirm, reverse or modify, the writ of error must be dismissed. See Nutter v. Wright, 132 Colo. 304, 287 P.2d 655, and the numerous decisions of this court therein referred to."

The foregoing language is applicable to the situation presented by the record before us in this case.

The writ of error is dismissed without prejudice to pursuing further appropriate proceedings in the trial court and this court.

SUTTON, J., not participating.